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1 WikiLeaks Document Release February 2, 2009 Congressional Research Service Report Federal Tort Claims Act Henry Cohen and Vanessa Burrows, American Law Division September 2, 2008 Abstract. This report discusses, among other things, the application of the Feres doctrine to suits for injuries caused by medical malpractice in the military, the prohibition of suite by victims of atomic testing, Supreme Court cases explicating the discretionary function exception, the extent to which federal employees may be held liable for torts they commit in the scope of their employment, and the government contractor defense to products liability design defect suits.

2 Order Code Federal Tort Claims Act Updated September 2, 2008 Henry Cohen Legislative Attorney American Law Division Vanessa K. Burrows Legislative Attorney American Law Division

3 Federal Tort Claims Act Summary The Federal Tort Claims Act is the statute by which the United States authorizes tort suits to be brought against itself. With exceptions, it makes the United States liable for injuries caused by the negligent or wrongful act or omission of any federal employee acting within the scope of his employment, in accordance with the law of the state where the act or omission occurred. Three major exceptions, under which the United States may not be held liable, even in circumstances where a private person could be held liable under state law, are the Feres doctrine, which prohibits suits by military personnel for injuries sustained incident to service; the discretionary function exception, which immunizes the United States for acts or omissions of its employees that involve policy decisions; and the intentional tort exception, which precludes suits against the United States for assault and battery, among some other intentional torts, unless they are committed by federal law enforcement or investigative officials. This report discusses, among other things, the application of the Feres doctrine to suits for injuries caused by medical malpractice in the military, the prohibition of suits by victims of atomic testing, Supreme Court cases interpreting the discretionary function exception, the extent to which federal employees may be held liable for torts they commit in the scope of their employment, and the government contractor defense to products liability design defect suits. In the 110th Congress, two bills have been introduced that would amend the Federal Tort Claims Act: H.R. 2249, the Federal Tort Claim Reform Act of 2007, and H.R. 6093, the Carmelo Rodriguez Military Medical Accountability Act of 2008.

4 Contents Introduction...1 The Feres Doctrine and Medical Malpractice...5 The Discretionary Function Exception...9 Suits by Victims of Atomic Testing...12 The Warner Amendment and the Radiation Exposure Compensation Act...15 The Intentional Tort Exception...17 Suits Against Federal Employees...19 Certification...20 Constitutional Torts: Federal Employees Liability and Immunity...22 The Practical Side of Bivens Actions...25 Qualified Immunity to Bivens Actions...26 The Government Contractor Defense...27

5 Federal Tort Claims Act Introduction The Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), , is the statute by which the United States authorizes tort suits to be brought against itself. As a result of the common law doctrine of sovereign immunity, the United States cannot be sued without its consent. 1 Congress alone has the power to waive or qualify that immunity. 2 In 1946, by enacting the FTCA, Congress waived sovereign immunity for some tort suits. With exceptions, it made the United States liable: for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. 1346(b). Thus, the FTCA makes the United States liable for the torts of its employees 3 to the extent that private employers are liable under state law for the torts of their employees. 4 The fact that state law would make a state or municipal entity as opposed to a private person liable under like circumstances is not sufficient to make the United States liable under the FTCA. 5 The FTCA, however, contains exceptions under which the United States may not be held liable even though a private employer could be held liable under state law. Three of these exceptions are examined in separate sections of this report: the Feres doctrine, which prohibits suits by military personnel for injuries sustained 1 Federal Housing Administration v. Burr, 309 U.S. 242, 244 (1940). 2 United States v. Chemical Foundation, Inc., 272 U.S. 1, 20 (1926). 3 The United States may be held liable under the FTCA for torts of employees of the executive, legislative, and judicial branches, but not for torts of government contractors. 28 U.S.C Another section of the FTCA provides that the United States shall be liable in the same manner and to the same extent as a private individual under like circumstances (28 U.S.C. 2674(a)), and the Supreme Court has noted that like circumstances are not limited to the same circumstances, but include analogous circumstances. United States v. Olson, 546 U.S. 43, 47 (2005). 5 United States v. Olson, supra, note 4.

6 CRS-2 incident to service; 6 the discretionary function exception; and the intentional tort exception. Among the other exceptions, the United States may not be held liable in accordance with state law imposing strict liability; 7 it may not be held liable for interest prior to judgment or for punitive damages (28 U.S.C. 2674); 8 for the act or omission of an employee exercising due care in the execution of an invalid statute or regulation (28 U.S.C. 2680); 9 for claims arising out of the loss, miscarriage, or negligent transmission of letters or postal matter ; 10 for claims arising in respect of the assessment or collection of any tax 11 or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer ; 12 for claims caused by the fiscal operations of the 6 Federal civilian employees covered by the Federal Employees Compensation Act, 5 U.S.C et seq., are also prohibited from suing under the FTCA for work-related injuries. 5 U.S.C. 8116(c). 7 The requirement in 28 U.S.C. 1346(b) that liability be based on a negligent or wrongful act or omission has been construed to preclude strict liability. See, Dalehite v. United States, 346 U.S. 15, (1953). However, the National Swine Flu Immunization Program of 1976, P.L , made the United States liable for injuries arising out of the administration of the swine flu vaccine to the extent that manufacturers would be liable under state law including negligence, strict liability in tort, and breach of warranty. 8 In Molzof v. United States, 502 U.S. 301 (1992), the Supreme Court held that damages for future medical expenses and loss of enjoyment of life for a veteran in a permanent vegetative state as a result of government hospital employees negligence were not punitive and therefore could be awarded. The government had argued that these damages were punitive rather than compensatory in nature because the award for future medical expenses duplicated free medical services already being provided by the veterans hospital, and the award for loss of enjoyment of life cannot redress a comatose patient s uncognizable loss. The Court held, however, that 2674 bars the recovery only of what are legally considered punitive damages under traditional common-law principles. Id. at 312 (emphasis in original). 9 Subsequent exceptions cited in the sentence also appear in 28 U.S.C In Dolan v. United States Postal Service, 546 U.S. 481 (2006), the Supreme Court held that the postal exception is inapplicable to a claim that mail left on the plaintiff s porch caused her to trip and fall, just as it is inapplicable to the negligent operation of postal motor vehicles. Congress intended to retain immunity, the Court wrote, only for injuries arising, directly or consequentially, because mail either fails to arrive at all or arrives late, in damaged condition, or at the wrong address. Id. at 489. Losses of this type, the Court added, are at least to some degree avoidable or compensable through postal registration and insurance. Id. at Section 6241 of the Technical and Miscellaneous Revenue Act of 1988, P.L , authorizes taxpayers to sue the United States if any officer or employee of the Internal Revenue Service recklessly or intentionally disregards any provision of the Internal Revenue Code, and to recover up to $100,000 in actual, direct economic damages sustained as a result of such action. 26 U.S.C Public Law (2000) added an exception to this exception to the FTCA, allowing suits in some cases involving forfeiture of property other than as a sentence for a crime. In Ali v. Federal Bureau of Prisons, 128 S. Ct. 831, 834 (2008), the Court held that the broad phrase any other law enforcement officer covers all law enforcement officers, including officers of the Federal Bureau of Prisons, and does not apply only to law enforcement (continued...)

7 CRS-3 Treasury or by the regulation of the monetary system; for claims arising out of combatant activities; or for claims arising in a foreign country. 13 Prior to filing suit under the FTCA, a claimant must present his claim to the federal agency out of whose activities the claim arises. 28 U.S.C This must be done within two years after the claim accrues. 28 U.S.C If, within six months after receiving a claim, the agency mails a denial of the claim to the claimant, then the claimant has six months to file suit in federal district court. 28 U.S.C. 2401, No period of limitations applies to a plaintiff if the agency fails to act within six months after receiving his claim. 16 Suits under the FTCA are tried without a jury. 28 U.S.C (...continued) officers enforcing customs or excise laws. 13 In Smith v. United States, 507 U.S. 197, 198 (1993), the Supreme Court held that Antarctica is a foreign country for this purpose even though it is a sovereignless region without civil tort law of its own. In Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004), the Supreme Court held that the FTCA s foreign country exception bars all claims based on any injury suffered in a foreign country, regardless of where the tortious act or omission occurred. The plaintiff s suit therefore was dismissed even though his abduction in Mexico was the direct result of wrongful acts of planning and direction by DEA agents located in California. Id. at 702. The Court was unwilling to adopt the headquarters doctrine because it will virtually always be possible to assert that the negligent activity that injured the plaintiff [abroad] was the consequence of faulty training, selection or supervision or even less than that, lack of careful training, selection or supervision in the United States. Id. Although the United States is not liable for claims arising in a foreign country, federal statutes give several federal agencies the authority to compensate victims of torts committed by federal employees in foreign countries. These statutes include 22 U.S.C. 1475(5), 2269(f), (Department of State), 38 U.S.C. 515(b) (Department of Veterans Affairs), 22 U.S.C. 2509(b) (Peace Corps), and 10 U.S.C. 2733, 2734 (Department of Defense). 14 In McNeil v. United States, 508 U.S. 106 (1993), the Supreme Court disallowed a suit because the claimant had not first filed an administrative claim, even though the claimant was a prisoner without legal counsel and had filed an administrative claim (later denied) only four months after filing suit, before any substantial progress in the litigation had occurred. 15 A claim accrues under the FTCA when the plaintiff has discovered both his injury and its cause. United States v. Kubrick, 444 U.S. 111, 120 (1979). This rule benefits, among others, plaintiffs with latent diseases that are not discovered until years after exposure to a hazardous substance. See also, Sinclair and Szypszak, Limitations of Action Under the FTCA: A Synthesis and Proposal, 28 Harvard Journal on Legislation 1 (1991); Annotation, Statute of Limitations Under Federal Tort Claims Act (28 USCS 2401(b)), 29 ALR Fed Pascale v. United States, 998 F.2d 186 (3d Cir. 1993). 17 See, Kirst, Jury Trial and the Federal Tort Claims Act: Time to Recognize the Seventh Amendment Right, 58 Texas Law Review 549 (1980).

8 CRS-4 An agency may not settle a claim for more than $25,000 without the prior written approval of the Attorney General or his designee, unless the Attorney General delegates to the head of the agency the authority to do so. 18 Such delegations may not exceed the authority delegated by the Attorney General to United States attorneys to settle claims for money damages against the United States. 19 United States attorneys are authorized to settle claims in amounts up to $1 million. 20 Settlements of $2,500 or less shall be paid by the agency out of appropriations available to the agency; settlements of more than $2,500 shall be paid from general revenues. 28 U.S.C Attorneys who represent claimants under the FTCA may not charge claimants more than 25% of a court award or a settlement made by the Attorney General or his designee after suit is filed, or more than 20% of a settlement made by the agency with whom a claim is filed. 28 U.S.C A court may not order the United States to pay a claimant s attorneys fees unless the court finds the United States to have acted in bad faith. 28 U.S.C. 2412(b) U.S.C. 2672, as amended by P.L , 8; 38 U.S.C There appears to be no general limit on settlements effected with the prior written approval of the Attorney General or his designee. A limit applicable to the Department of Justice in non-ftca situations is noted in footnote 45 of this report U.S.C. 2672, as amended by P.L , 8; see also, 38 U.S.C C.F.R (d)(2); see, Lester Jayson and Robert Longstreth, HANDLING FEDERAL TORT CLAIMS: ADMINISTRATIVE AND JUDICIAL REMEDIES, 15.05[1]. The Attorney General has delegated the authority to settle tort claims of up to $200,000 to the Secretary of Veterans Affairs, the Postmaster General, the Secretary of Defense, and the Secretary of Health and Human Services, and of up to $100,000 to the Secretary of Transportation. 28 C.F.R. Part 14, App. 21 See, Annotation, Calculations of Attorneys Fees Under Federal Tort Claims Act 28 USCS 2678, 86 ALR Fed 866. A California statute that limited the amount of attorneys fees that may be charged a client in a medical malpractice action was held to be preempted to the extent that it would apply in an action brought under the FTCA. Jackson v. United States, 881 F.2d 707 (9 th Cir. 1989). 22 The pertinent part of this provision, which is part of the Equal Access to Justice Act, states: The United States shall be liable for such fees [i.e., reasonable attorneys fees] and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award. No statute provides for fee awards under FTCA, and another part of the Equal Access to Justice Act, which authorizes fee awards against the United States in some instances where other parties would not be liable for fee awards, does not apply to cases sounding in tort. 28 U.S.C. 2412(d)(1)(A). However, under the common law, parties other than the United States may be held liable for attorneys fees when they act in bad faith. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, (1975). In Sanchez v. Rowe, 870 F.2d 291, 295 (5 th Cir. 1989), the court found a lack of the requisite bad faith and therefore did not reach the issue whether an award of attorneys fees would... be barred by the FTCA prohibition against punitive damages [28 U.S.C. 2674]. Subsequently, however, in Molzof v. United States, supra, note 8, the Supreme Court, in a different context, held that 2674 bars the recovery only of what are legally considered (continued...)

9 CRS-5 The Feres Doctrine and Medical Malpractice In Feres v. United States, 340 U.S. 135 (1950), the Supreme Court unanimously held that, although the FTCA contains no explicit exclusion for injuries sustained by military personnel incident to service, such an exclusion results from construing the act to fit, so far as will comport with its words, into the entire statutory scheme of remedies against the Government to make a workable, consistent and equitable whole. 340 U.S. at 139. One reason the Court found that to prohibit recovery for injuries sustained incident to service would fit the entire statutory scheme was that the act, at 28 U.S.C. 2674, makes the United States liable only to the same extent as a private individual under like circumstances. This limitation could be construed to exclude service-connected injuries because, the Court found, that plaintiffs can point to no liability of a private individual even remotely analogous to that which they are asserting against the United States. We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving. Nor is there any liability under like circumstances, for no private individual has power to conscript or mobilize a private army with such authorities over persons as the Government vests in echelons of command. 340 U.S. at Another basis for the Court s decision in Feres was that the act makes the law of the place where the act or omission occurred (28 U.S.C. 1346(b)) govern liability, yet, in the case of a soldier, who is not free to choose his habitat, [t]hat the geography of an injury should select the law to be applied to his tort claims makes no sense. Id. at 143. The Court also was influenced by the fact that Congress has enacted laws that provide systems of simple, certain, and uniform compensation for injuries or death of those in armed services, yet Congress made no provision as to how recovery under the FTCA would affect entitlement to such compensation. The absence of any such adjustment is persuasive that there was no awareness that the act might be interpreted to permit recovery for injuries incident to military service. Id. at 144. The Court concluded: that the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service. Without exception, the relationship of military personnel to the Government has been governed exclusively by federal law. We do not think that Congress, in drafting the Act, created a new cause of action dependent on local law for service-connected injuries or death due to negligence. We cannot impute to Congress such a radical departure from established law in the absence of express congressional command. 340 U.S. at (...continued) punitive damages under traditional common-law principles.

10 CRS-6 In Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, (1977), the Supreme Court identified three rationales as the foundation for the Feres doctrine: First, the relationship between the Government and members of its Armed Forces is distinctively federal in character,... ; it would make little sense to have the Government s liability to members of the Armed Services depend on the fortuity of where the soldier happened to be stationed at the time of the injury. Second, the Veterans Benefits Act establishes as a substitute for tort liability, a statutory no fault compensation scheme which provides generous pensions to injured servicemen, without regard to any negligence attributable to the Government. A third factor was explicated in United States v. Brown, 348 U.S. 110, 112 (1954), namely, [t]he peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty.... The Supreme Court reaffirmed the Feres doctrine in United States v. Shearer, 473 U.S. 52 (1985), and again addressed the reasons for its adoption. Feres seems best explained, the Court wrote: by the peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty. The Feres doctrine cannot be reduced to a few bright-line rules; each case must be examined in light of the statute as it has been construed in Feres and subsequent cases. 473 U.S. at 57 (citations omitted). The Court emphasized that significant factors in determining whether the Feres doctrine bars a suit are whether the suit requires the civilian court to second-guess military decisions... and whether the suit might impair military discipline. Id. at 57. It noted that other factors mentioned in Feres are no longer controlling. Id. at 58 n.4. These other factors apparently were the distinctively federal nature of the relationship between the government and military personnel, and the alternative compensation system available to military personnel. Subsequently, however, in United States v. Johnson, 481 U.S. 681 (1987), discussed below, the Court reaffirmed these factors. In Atkinson v. United States, 23 a panel of the United States Court of Appeals for the Ninth Circuit, relying primarily on Shearer, allowed a medical malpractice suit to be brought under the FTCA by a servicewoman who suffered injuries incident to F.2d 561 (9 th Cir. 1986), modified, 813 F.2d 1006 (9 th Cir. 1987), withdrawn, 825 F.2d 202 (9 th Cir. 1987), cert. denied, 485 U.S. 987 (1988).

11 CRS-7 service in an Army hospital. The government sought a rehearing, and, in the interim, the Supreme Court decided United States v. Johnson, supra, which caused the Ninth Circuit s panel to grant the rehearing and issue a new opinion in Atkinson, reversing itself. The Supreme Court subsequently declined to review the case. These three decisions the panel s first decision in Atkinson, Johnson, and the panel s second decision in Atkinson are now examined in turn. The plaintiff in Atkinson alleged that negligence on the part of Army hospital personnel had caused her to deliver a stillborn child and to suffer physical and emotional injuries. The panel, in its first decision, wrote: [T]he Feres doctrine bars suit only where a civilian court would be called upon to second-guess military decisions or where the plaintiff s admitted activities are of the sort that would directly implicate the need to safeguard military discipline.... In Shearer, the Supreme Court also confirmed that courts should take a case-by-case, rather than per se, approach to claims [by the government] of immunity. 804 F.2d at 563. Taking such an approach, the court wrote: At the time Atkinson sought treatment, she was not subject in any real way to the compulsion of military orders or performing any sort of military mission.... No command relationship exists between Atkinson and her attending physician. No military considerations govern the treatment in a non-field hospital of a woman who seeks to have a healthy baby. No military discipline applies to the care a conscientious physician will provide in this situation.... There is simply no connection between Atkinson s medical treatment and the decisional or disciplinary interest protected by the Feres doctrine. Id. at Note that this decision did not hold that all military malpractice suits are exempt from the Feres doctrine. In taking a case-by-case approach, the court allowed for the possibility of a situation in which there is a connection between a serviceman or servicewoman s medical treatment and the decisional or disciplinary interest protected by the Feres doctrine. In 1987, in United States v. Johnson, supra, the Supreme Court, in a 5-to-4 decision, held that the Feres doctrine bars suits on behalf of military personnel injured incident to service even in cases of torts committed by employees of civilian agencies. The plaintiff in Johnson was the widow of a serviceman killed incident to service in a helicopter crash allegedly caused by the negligence of the Federal Aviation Administration. Reexamining the reasons for the Feres doctrine, the Court concluded that whether the tortfeasor was a civilian or a military employee was not significant. The reasons for the Feres doctrine that it reexamined, and reaffirmed, were the three cited in Stencel, set forth on page 5 of this report. Thus, it removed any doubts that it had cast in Shearer upon the significance of those factors. Justice Scalia, joined by three other justices in dissent, noted that the Feres doctrine is not in the FTCA as enacted by Congress, and found the reasons offered by the Court for adopting the doctrine to be unsatisfactory:

12 CRS-8 [N]either the three original Feres reasons nor the post hoc rationalization of military discipline justifies our failure to apply the FTCA as written. Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received. 481 U.S. at Citing Johnson, the Ninth Circuit s panel subsequently reversed itself in Atkinson: Significant for our purposes [the panel wrote] is the Court s articulation, with apparent approval, of all three rationales associated with Feres.... Simply put, Johnson appears to breathe new life into the first two Feres rationales, which until that time had been largely discredited and abandoned.... Although we believe that the military discipline rationale does not support application of the Feres doctrine in this case, the first two rationales support its application.... We are... reluctant to carve out an exception to Feres after five members of the Court appear to have emphatically endorsed Feres and all three of its rationales. That task, if it is to be undertaken at all, is properly left to the Supreme Court or to Congress. 825 F.2d at In Del Rio v. United States, 833 F.2d 282 (11 th Cir. 1987), a servicewoman who had given birth to twins brought a medical malpractice suit under the FTCA, alleging that, as a result of negligent prenatal care at a military hospital, one of her twins suffered bodily injury and the other died. The Eleventh Circuit held that the Feres doctrine, as interpreted in Johnson, barred her claim. It agreed with the Ninth Circuit s second decision in Atkinson that the first two Feres factors operated to preclude suit, but, unlike the Ninth Circuit, believed that even the third factor did so. Obviously, the court wrote, the suit might impair essential military discipline In Irvin v. United States, 845 F.2d 126 (6 th Cir. 1988), cert. denied, 488 U.S. 975 (1988), another servicewoman alleged that negligent prenatal care by the military had resulted in her infant s death, and another court of appeals held that the Feres doctrine barred suit under the FTCA. In Bowers v. United States, 904 F.2d 450 (8 th Cir. 1990), the court held that the Feres doctrine precludes an individual from recovering for medical malpractice allegedly committed at his pre-induction physical. Although the plaintiff was not a service member at the time of the alleged negligence, and was not eligible for either veterans benefits or treatment in a military hospital, the court found that two of the three Feres rationales spelled out in Johnson were applicable: the relationship 24 The three original reasons Justice Scalia referred to were that the parallel private liability required by the FTCA was absent and the first two reasons mentioned in Stencel; the military discipline rationale was the third reason mentioned in Stencel. 25 The three rationales referred to are those cited in Stencel and by the majority in Johnson F.2d at 286 (citing Shearer, 473 U.S. at 56, and adding emphasis).

13 CRS-9 between Bowers and the armed forces is distinctively federal, and a decision for Bowers would have a direct effect upon military judgments and decisions. Id. at 452. Thus, the Feres doctrine stands and contains no exception for medical malpractice cases. Because the first two Stencel factors the federal nature of the relationship between the government and military personnel, and the alternative compensation scheme would seem to apply in every case, there may not even be occasion for courts to use the case-by-case approach of Shearer. This could change, however, as a result of action by either the Supreme Court or Congress. As for the Supreme Court, it is not beyond the realm of possibility that it could completely overrule Feres. In Johnson, as noted, the four dissenting justices said that Feres had been wrongly decided, and even downplayed the significance of the fact that Congress since 1950 has not overturned Feres. 481 U.S. at 702 (Scalia, J., dissenting). As for Congress, some Members in the past have shown interest in amending the Feres doctrine to the extent of authorizing medical malpractice suits. 27 Although Feres was an interpretation of the FTCA, it has been applied to bar suits against the United States under other statutes, including the Privacy Act. Cummings v. Department of Navy, 116 F. Supp. 2d 76 (D.D.C. 2000). The application of the Feres doctrine to spouses and children of military personnel is discussed below, at the beginning of the section on Suits by Victims of Atomic Testing. The Discretionary Function Exception The discretionary function exception is the most significant exception to government liability that is explicitly provided for in the FTCA. This exception immunizes the United States from claims based upon the exercise or performance or the failure to exercise or perform a discretionary function. 28 U.S.C. 2680(a). It precludes liability even if a federal employee acted negligently in the performance or nonperformance of his discretionary duty. 28 In Dalehite v. United States, 346 U.S. 15 (1953), the Supreme Court said that the discretion protected by the exception: is the discretion of the executive or administrator to act according to one s judgment of the best course.... It... includes more than the initiation of programs and activities. It also includes determinations made by executives or 27 See, e.g., Medical Malpractice Suits for Armed Services Personnel: Hearings on S and H.R Before the Subcomm. on Courts and Administrative Practice of the Senate Comm. on the Judiciary, 100 th Cong., 2 nd sess. (1988). 28 Congress has provided that the discretionary function exception does not apply in any action based upon the act or omission of a participant in the swine flu immunization program. P.L ; see also, note 7, supra. Congress has also provided that the exception does not apply to certain claims based upon gross negligence by employees of the Consumer Product Safety Commission. 15 U.S.C. 2053(h)(1)(B).

14 CRS-10 administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable. Id. at 34, (footnotes omitted). In United States v. Varig Airlines, 467 U.S. 797 (1984), victims of airplane accidents alleged that the Federal Aviation Administration (FAA) had acted negligently in certifying certain airplanes for operation. The FAA had established a program of spot-checking manufacturers compliance with minimum safety standards, and had certified the airplanes involved in the accidents without inspecting them. The Supreme Court, applying the principles it had set forth in Dalehite, held: Here, the FAA has determined that a program of spot-checking manufacturers compliance with minimum safety standards best accommodates the goal of air transportation safety and the reality of finite agency resources. Judicial intervention in such decisionmaking through private tort suits would require the courts to second-guess the political, social, and economic judgments of an agency exercising its regulatory function.... It follows that the acts of FAA employees in executing the spot-check program in accordance with agency directives are protected by the discretionary function exception as well.... The FAA employees who conducted compliance reviews of the aircraft involved in this case were specifically empowered to make policy judgments. Id. at In Berkovitz v. United States, 486 U.S. 531 (1988), the Supreme Court held that the United States could be held liable under the FTCA, because the plaintiffs had proved that federal employees had failed to follow regulations that specifically prescribed a course of action. The plaintiffs were an infant, who had contracted a severe case of polio from a dose of Orimune, an oral polio vaccine, and his parents. They claimed that the Division of Biologic Standards, then a part of the National Institutes of Health, had violated a federal statute and accompanying regulations in issuing a license to a vaccine manufacturer to produce Orimune, and that the Bureau of Biologics of the Food and Drug Administration had violated federal regulations 29 More generally, the Court noted: As in Dalehite, it is unnecessary and indeed impossible to define with precision every contour of the discretionary function exception. From the legislative and judicial materials, however, it is possible to isolate several factors useful in determining when the acts of a Government employee are protected from liability by 2680(a). First, it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case.... Second, whatever else the discretionary function exception may include, it plainly was intended to encompass the discretionary acts of the Government acting in its role as a regulator of the conduct of private individuals. 467 U.S. at

15 CRS-11 in approving the release of the particular lot that contained the dose that injured the infant. The regulatory scheme governing licensing in Berkovitz, unlike the one challenged in Varig, did not permit spot-checking; it required the agency, prior to issuing a product license, to receive all data the manufacturer is required to submit, examine the product, and make a determination that the product complies with safety standards. Id. at 542. The regulatory scheme governing release of vaccine lots apparently would have given the agency the power to establish a spot-checking program as was used in Varig. However, the plaintiffs alleged that the agency had: adopted a policy of testing all vaccine lots for compliance with safety standards and preventing the distribution to the public of any lots that fail to comply. [Plaintiffs] further allege that notwithstanding this policy, which allegedly leaves no room for implementing officials to exercise independent policy judgment, employees of the Bureau knowingly approved a lot that did not comply with safety standards. Id. at 547. The Court sent the case back for trial, holding that if these allegations were proved, then the discretionary function exception would not bar the claim. 30 The Court thus rejected the view expressed by the court below that the discretionary function exception exempts the United States from claims based on... nondiscretionary operational level acts and omissions taken in furtherance of planning level discretionary decisions. 822 F.2d 1322, 1329 (3d Cir. 1987). In United States v. Gaubert, 499 U.S. 315 (1991), the Court held that the discretionary function exception barred suit against the United States for the activities of federal bank regulators in connection with a failing savings and loan association, the Independent American Savings Association (IASA). The regulators became involved in IASA s day-to-day business. They recommended the hiring of a certain consultant to advise IASA on operational and financial matters; they advised IASA concerning whether, when, and how its subsidiaries should be placed into bankruptcy; they mediated salary disputes; they reviewed the draft of a complaint to be used in litigation; they urged IASA to convert from state to federal charter; and they actively intervened when the Texas Savings and Loan Department attempted to install a supervisory agent at IASA. Id. at More generally, the Court held that, in determining the applicability of the discretionary function exception, a court must first consider whether the action is a matter of choice for the acting employee.... [C]onduct cannot be discretionary unless it involves an element of judgment or choice.... Thus, the discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive.... The [discretionary function] exception... protects only governmental actions and decisions based on considerations of public policy. 486 U.S. at

16 CRS-12 The plaintiff, who was IASA s chairman of the board and largest shareholder, alleged that these activities were performed negligently and cost him $100 million in damages. The United States argued that, even if the regulators activities had been performed negligently, the discretionary function exception precluded recovery. The court of appeals found that only some of the regulators activities were protected by the discretionary function exception: while policy decisions fall within the exception, operational actions do not. Id. at 321. The Supreme Court disagreed: A discretionary act is one that involves choice or judgment; there is nothing in that description that refers exclusively to policy-making or planning functions. Day-to-day management of banking affairs, like the management of other businesses, regularly require[s] judgment as to which of a range of permissible courses is the wisest. Id. at 325. The discretionary function exception thus applies to decisions based on policy, whether made at the policy or planning level, on the one hand, or at the operational level, on the other. 31 Suits by Victims of Atomic Testing From 1946 to 1962, approximately 235 tests of atomic weapons were performed by federal government contractors. Many military and civilian personnel who participated in these tests claim to have suffered cancer and other long-term medical injuries as a result. Current federal law generally precludes either military or civilian personnel from recovering in tort against either the federal government or the contractors in these cases. Military personnel are barred from recovering against the United States because of the Feres doctrine. The doctrine of the Feres case does not apply to the spouse or child of a serviceman insofar as their own injuries or death are concerned.... Conversely, the Feres doctrine clearly bars a suit by a serviceman s next of kin for damages resulting from the death or of injuries to the serviceman if his death or injuries are incident to service The Court noted that some discretionary acts are not protected by the discretionary function exception because they are not based on the purposes that the regulatory regime seeks to accomplish. If an official engaged in an act protected by the discretionary function exception drove an automobile in connection with that act and negligently caused an accident, the exception would not apply. Although driving requires the constant exercise of discretion, the official s decisions in exercising this discretion can hardly be said to be grounded in regulatory policy. Id. at 325 n Jayson and Longstreth, supra, note 20, 5A.09 (footnotes omitted). See, Annotation, Right of Member of Family of Serviceman to Maintain Action Under Federal Tort Claims Act (28 USCS 1346(b), ) Against United States Based Upon Injuries Sustained (continued...)

17 CRS-13 The distinction is between a spouse s or child s injury that is caused directly by the military and a spouse s or child s injury that results from the soldier s service-connected injury: the former is recoverable but the latter is not. Thus, courts of appeals have held that the Feres doctrine bars spouses of soldiers from recovering for their own injuries where such injuries resulted from the soldiers injuries that were caused by the soldiers having been ordered into nuclear blast areas. 33 Similarly, courts of appeals have held that the Feres doctrine bars recovery by children born with birth defects that resulted from genetic changes in their fathers that occurred when they were exposed to radiation while on military duty. 34 However, the Feres doctrine does not bar an action against the United States for a service-related injury suffered by a veteran as a result of independent post-service negligence, such as failure of the government to warn or monitor a veteran who had been exposed to radiation. 35 A district court has held that the Feres doctrine does not bar suit by the daughter and grandson of a soldier who was the victim of such negligence. 36 Civilians have also been denied recovery against the United States for injuries caused by atomic testing denied it on the basis of the discretionary function exception to the FTCA. (This exception applies to all plaintiffs, so even if the Feres doctrine were overturned, military personnel would be barred from recovering to the same extent as civilians in atomic testing cases.) The Supreme Court has not considered the applicability of the discretionary function exception to atomic testing cases, but it has declined to review two federal courts of appeals decisions that held that the discretionary function exception bars recovery in such cases. In In re Consolidated United States Atmospheric Testing Litigation, 820 F.2d 982, 993 (9 th Cir. 1987), cert. denied, 485 U.S. 905 (1988), the court of appeals stated that Dalehite is squarely on point. In both In re Consolidated and Dalehite, a detailed and extensive Operation Plan was adopted on orders from the highest levels of the Executive Department. An integral part of that Plan was an extensive Safety Plan.... Id. at 994. The plaintiffs in In re Consolidated argued that the negligent failure of Atomic Energy Commission and military officials to follow safety guidelines established in the plan, such as decontamination measures and the use of 32 (...continued) By Serviceman While on Active Duty, 69 ALR Fed E.g., Hinkie v. United States, 715 F.2d 96 (3d Cir. 1983), cert. denied, 465 U.S (1984) (barring a suit for the soldier s spouse s miscarriages and children s birth defects where these injuries were caused by chromosomal damages resulting from the Army s negligent exposure of their husband and father to harmful levels of radiation in the course of his former military service, id. at 98 n.2). The court stated that it sensed the injustice of the result, but that it has no legal authority, as an intermediate appellate court, to decide the case differently. Id. at Id. 35 Broudy v. United States, 722 F.2d 566, 570 (9 th Cir. 1983). 36 Seveny v. United States Government, Department of Navy, 550 F. Supp. 653 (D. R.I. 1982).

18 CRS-14 protective clothing and gear, had resulted in the overexposure of many hundreds or thousands of test participants. The Ninth Circuit held: The Safety Plan incorporated into the Operation Plan contemplated that judgments and decisions concerning exposure to radiological hazards and the degree of protection to be afforded would be made in light of the objectives and the needs of the test program. Safety decisions, therefore, were part of the policy decisions made in the conduct of the weapons tests, [ ] and they fall squarely within the articulation in Dalehite that [w]here there is room for policy judgment and decision there is discretion. Id. at 995, citing 346 U.S. at 36. The plaintiffs also argued that the government had been negligent in failing to warn the plaintiffs of the dangers to which they had been exposed or to monitor test participants for health problems resulting from radiation exposure. 820 F.2d at 996. The court held: This is not a case of failing to warn river users of hidden obstructions beneath the surface; or park users of the risk of flash floods; or a treating physician of his patient s dangerous propensities. The kind of warning that these [atomic testing] cases involve... entailed a commitment of substantial resources, including the assignment of a large number of employees and the expenditure of large sums of money.... The program required difficult judgments balancing the magnitude of the risk from radiation exposure of which there was only fragmentary knowledge against the risks and burdens of a public program. Those risks included the potential consequences of creating public anxiety and the health hazards inherent in the medical responses to the warning. Thus, any decision whether to issue warnings to thousands of test participants... calls for the exercise of judgment and discretion at the highest levels of government.... The conclusion is inescapable that every aspect of a warning program is a matter that falls within the discretionary function exception as defined in Dalehite and Varig In Allen v. United States, 816 F.2d 1417 (10 th Cir. 1987), cert. denied, 484 U.S (1988), the Tenth Circuit, two months earlier, had reached the same conclusion as the Ninth Circuit reached in In re Consolidated. The plaintiffs in Allen singled out the alleged failure of the government... to fully monitor offsite fallout exposure and to fully provide needed public information on radioactive fallout. 816 F.2d at They contended that these activities did not involve the kind of policy 37 Id. at (quoting the district court s opinion). The court s reference to the levels of government at which decisions were made should be read in the light of the following language from the Supreme Court s decision in Varig (already quoted in footnote 29 of this report), which the court in In re Consolidated had itself quoted earlier in its opinion (820 F.2d at 995): it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case.

19 CRS-15 judgments protected by the discretionary function exception. 816 F.2d at The court disagreed: In the case before us, as in Varig, the government actors had a general statutory duty to promote safety; this duty was broad and discretionary. In the case before us it was left to the AEC, as in Varig it was left to the Secretary of Transportation and the FAA, to decide exactly how to protect public safety.... In the instant case, no evidence was presented of any act or omission of the AEC or its employees that clearly contravened a specific statutory or regulatory authority. There was no evidence, for example that the Test Information Officer failed to give out, or that the Radsafe Officer failed to take a specific radiation measurement that had been decided upon. Plaintiffs entire case rests on the fact that the government could have made better plans. This is probably correct, but it is insufficient for FTCA liability. Id. at 1421, The Warner Amendment and the Radiation Exposure Compensation Act Military and civilian victims of atomic testing have also sought to sue the government contractors involved in the testing. Under state tort law, a company engaged in atomic testing would likely be subject to strict liability (liability even in the absence of negligence) for injuries resulting from such testing, as atomic testing is an abnormally dangerous activity. 38 Federal law, however, bars victims of atomic testing from suing federal government contractors. Section 1631 of P.L , 42 U.S.C (known as the Warner Amendment ), 39 provides that an action against the United States under the FTCA shall be the exclusive remedy for injuries due to exposure to radiation based on acts or omissions by a contractor in carrying out an atomic weapons testing program under a contract with the United States. Under this provision, a contractor s employees shall be considered federal employees for purposes of any lawsuit See, Prosser and Keeton, THE LAW OF TORTS (5 th ed. 1984) 79, p This provision was repealed and re-enacted (as the Atomic Testing Liability Act, 42 U.S.C note) by sections 3140 and 3141 of P.L This, according to the accompanying conference report, was in order to recodify this section together with the revised Radiation Exposure Compensation Act. The conferees do not intend for this action to have any effect whatsoever on pending or past cases involving this provision of law. H.Rept , 101 st Cong., 2 nd sess. 763 (1990); reprinted in 1990 U.S.C.C.A.N The reason for the Warner Amendment was that the government contractors provided scientific, engineering and technical support for nuclear tests carried out by the government and for the government in the exercise of a governmental function, i.e., providing for the national defense. These organizations did not order the tests to be performed; they did not set the times or places for the tests; nor did they direct military or civilian government personnel to participate in them. It should appear, without question, that these contractors were acting as the de facto instruments of the United States Government in carrying out a (continued...)